Linam v. Reeves , 68 Ala. 89 ( 1880 )

BKEOKELL, C. J.

This case was. before this court at a former term, and is reported.—Reeves v. Linam, 57 Ala. 564. All the questions now presented, with the exception of the, instructions given or refused, in reference to the measure of damages, were determined adversely to the appellant. If, as does not now seem to be disputed, the horse was of the corpus di the statutory separate estate of the. appellee, it is too plain for discussion that the husband was without power to pass any title to it by mortgage.—Patterson v. Flanagan, 37 Ala. 513. Nor could title be conveyed otherwise than by an instrument in writing, executed jointly by husband and wife, and attested or acknowledged as the statute prescribes. Murphree v. Singleton, 37 Ala. 412; Whitman v. Abernathy, 33 Ala. 154. Nor have husband and wife the power, even when acting jointly, to pass title by mortgage ; their power is to sell, and does not include the power to mortgage. Peeples v. Stalla, 57 Ala. 53. As was said, when the case was here formerly, it follows, that “ as the horse could not be directly conveyed by the deed or mortgage of the husband alone, neither could that result be indirectly reached, by'any use to which he might apply the proceeds.” There was no error in the refusal of the instruction requested, or in sustaining the objections to the evidence offered by the appellant tending to show that the mortgage debt was created for supplies or necessaries for the household of husband and wife ; or that the proceeds of the sale of the cotton were applied in the support of.the family. If that be true, thereby the title of the wife to the horse is not impaired, nor is the wrong of the conversion mitigated.

2. The measure of damages in the action of trover, when the plaintiff'has lost his property wholly by the conversion, is, if the value of the property is not fluctuating, the value at-the time of the conversion with interest to the time of trial and verdict. If the value is fluctuating, the jury may take the highest value at any time between the conversion and the trial.—Tatum v. Manning, 9 Ala. 682; Lee v. Matthews, 10 Ala. 682; Ewing v. Blount, 20 Ala. 694; Jenkins v. McConico, 26 Ala. 213. In view of the facts of the case, the Circuit Court properly instructed the jury, the measure of recovery was the value of the horse at the time of the conversion, with interest to the day of trial. Affirmed.